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Grievance Filing Against Belknap County (NH) Attorney Andrew Livernois and Deputy Keith Cormier For Misconduct

This is a detailed complaint I filed recently regarding an attempt by the local prosecutor's office to eviscerate my First Amendment rights and deny me my rights to due process throughout the case.

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Grievance Filing Against Belknap County (NH) Attorney Andrew Livernois and Deputy Keith Cormier For Misconduct

  1. 1. This Grievance is filed in good faith to outline the documented misconduct of Belknap County Attorney Andrew B. Livernois (Bar #14350) and Deputy County Attorney Keith Cormier, Esq. (Bar #267681) during their course of executing their public prosecutorial duties in Superior Court Case #211-2019-CR-163. Both of these attorneys share the County Attorney’s office as a physical address: 64 Court Street in Laconia, NH 03246. The Rules of Professional Conduct which apply to this grievance are 8.3 and 8.4. Belknap County Attorney Andrew Livernois is the chief offender of Rule 8.4 (a and c subsections) and also should be considered in violation of Rule 8.3 (a) in relation to Attorney Cormier’s misconduct in this case, which he actually facilitated and directed: “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” Deputy County Attorney Keith Cormier primarily violated Rule 8.4 (a) and (c) along with tolerating the violations of the rules of conduct by Livernois to violate rule 8.3 (a). Belknap County Attorney Andrew Livernois (hereinafter “Livernois”), violated Rule 8.4 (a) by violating Rule 8.4 (c) as well as Rule 8.3 (a) for both allowing and ordering Attorney Cormier, his deputy, to file an indefensible motion for a gag order. The Rule 8.4 (c) violations are multiple in terms of Livernois’ conduct in this case. First, during a hearing on the case Livernois stated for the record that I made no counter offer to his plea agreement suggestion. This is despite the fact that I have it in writing that I did, in fact, make a counter offer to Livernois a mere five minutes after he asked for one. (see exhibit 1) He then later suggested what I countered with was not a serious offer and that I should consult with my standby counsel to come up with something more appropriate (see exhibit 2). Yet, he
  2. 2. did not tell the judge that he did not receive “any serious counter offers.” He told the judge he received no counter offer at all. Another violation occurred when Livernois lied again in open court by suggesting all evidence of my “outrageous government conduct” defense could be raised at trial when he knew the law demanded the judge decide that area of law rather than a jury. He also set out to block the very evidence I wanted to use to prove outrageous government conduct with multiple “Motions in Limine” designed to eliminate the bulk of my evidence showing a pattern of abuse of power and Livernois’ direct past civil legal relationship with agents involved in my case. So, he knew when he stated this lie that it was not true. This is a link to the actual recording of the hearing in which he made these remarks: https://bit.ly/2Z6lujk Finally, Livernois egregiously violated subsection c of Rule 8.4 and Rule 8.3 (a) by abusing his position and assigning Deputy County Attorney Keith Cormier (hereinafter “Cormier) to write a motion in the case entitled: State’s Motion For a Court Order Prohibiting Pre-Trial Publicity (https://bit.ly/2NqIEeG). This motion proved to be based on absolutely indefensible points of law and attempted to use these very rules of professional responsibility as a basis to provide the state radio silence in the press. This was despite the fact that I have always been self-represented and never passed the bar exam in any state. I never held a license to practice law in any jurisdiction. Livernois knew this from the outset of the case and even used my pro- se status to deny me an opportunity to meet with him prior to my arraignment. Despite informing the County Attorney that I feared for my safety and wanted to urgently deal with the leaks in law enforcement that prevented me from cooperating, he absolutely refused to acknowledge the fact that I would be representing myself and would not meet unless I obtained a lawyer. The ACLU-NH brief filed in opposition to the “gag order” request (https://bit.ly/3dBIADy) combines with my own objection to eviscerate every point of argument and every piece of precedent law used as a basis for Cormier’s Motion. The letter to the editor sent to the Laconia Daily Sun and published on May 19th , 2020 (https://bit.ly/3ewnHuN) outlines my personal feelings on the charges against me and the county attorney’s office approach to the
  3. 3. prosecution. Some facts of the case are mentioned, but nothing sensitive that would put anyone’s security at risk. I personally emailed the County Attorney (not Cormier) the Internet link to a published letter in the Laconia Daily Sun along with a short note. That email was confirmed by Livernois himself as an attachment to Cormier’s motion. He received the email, became aware of the threat to his personal reputation, and within 48 hours he ordered Cormier to draft and file the offending motion that both men had to know could not be justified by any actual precedent law or valid application of the professional rules of conduct to a pro-se party. Why didn’t Livernois write this motion himself? Bergeron did not mention Cormier by name in his letter to the editor. He mentioned Livernois. Livernois later claimed in an article published about the gag order in the Laconia Daily Sun that this was the first time he ever sought a gag order. (https://bit.ly/3exHI4k) It wasn’t him personally requesting it unless he ordered Cormier to or coordinated directly with Cormier to get the motion drafted and filed. Either way, allowing Cormier to file such a hastily prepared, unprofessional and baseless document should be considered a serious dereliction of duty on the part of Livernois in his supervisory role over the County Attorney’s office. Did Livernois accomplish any due diligence investigation into the law backing up this motion? Did he or Cormier really do any significant research at all if it was so easy for both the ACLU and a self-represented party to poke holes in every facet of the pleading? Livernois and Cormier both violated the New Hampshire Rules of Criminal Procedure by filing this motion/allowing it to be filed by the County Attorney’s Office. Specifically, Cormier is the main violator of Rule 35 (h): “By signing a pleading, an attorney certifies that the attorney has read the pleading, that to the best of the attorney’s knowledge, information and belief there is a good ground to support it, and that it is not interposed for delay.” There are no good grounds to support this motion at all, and the rush to put this motion before this sympathetic judge within 48 hours of becoming aware of the letter to the editor betrays the
  4. 4. county attorney’s office having faith that this pathetic excuse for a pleading would normally result in a rubber stamped order. Livernois personally sent me an email about the case in which he specifically mentioned that he knew Judge O’Neil did not believe any of my claims. His exact words were: “I know that Judge O’Neill does not put any stock in those claims either, as he is able to observe how I run my office and prosecute cases day in and day out. So I choose not to waste the Court’s time in responding.” (See Exhibit 2) How does Livernois “know” anything about what Judge O’Neil honestly believes or does not believe about my claims? He should be questioned about any ex parte communications he is participating in with the judge to determine if there is improper influence going on here. Criminal courts are biased enough against defendants without adding this element of bias stated so matter-of-factly by the County Attorney about a judge he appears before regularly. The ACLU and the local media outlets took Judge O’Neil’s rubber stamp off the table. The CA’s request to squelch free speech actually led to more free speech being exercised. Attorney Livernois himself commented publicly on the case in a Laconia Daily Sun Article. But there was nothing from the actual motion’s original author. I published another letter to the editor (https://bit.ly/3eAOOVv), and the Union Leader also did an article (https://bit.ly/2NwGHxr) on the gag order request. Furthermore, Livernois never requested a gag order in the Patrick Chung case. Chung, charged with possession of Cocaine, generated nationwide publicity for his implication in the crime. The case resulted in very harsh criticism of Livernois, including this article: https://tbdailynews.com/da-pursuing-cocaine-possession-indictment-against-patrick-chung- recently-dropped-felony-drug-charges-for-career-criminal-sex-offender/ (https://bit.ly/2B3tBoR) The above article contains the following passage:
  5. 5. “The fact that the DA is wasting the taxpayer’s money with this is a disgrace. Patrick Chung wasn’t hurting anyone, he wasn’t doing cocaine outside of his home, and he has no criminal record. He wasn’t selling cocaine, he just had some in his house. He passes FL drug tests regularly, so as far as we know he doesn’t have a drug problem. What’s next? Are we going to start arresting FL players for possessing steroids too? Because they’re all on it and that’s illegal too. This is Lake Winnipesaukee in the summer. They have real problems to deal with, and the fact that they are wasting their time on incidental cocaine possession that the cops found on accident is an affront to the taxpayers.” Livernois did not seek any gag orders in the Chung case. He actually put out a written statement for the press instead. He later dismissed the charge conditionally. The behavior of Livernois in pursuing this gag order motion is the definition of a deception. It is basically a fraud on the court executed by Livernois and Cormier in coordination. The fact that Rule 3.6 would not even apply to my case if I were a bar-admitted attorney in this state just makes the deception more pronounced. This is paragraph 8 from page two of Cormier’s motion: The purpose of Rule 3.6 is clear – it is to protect the integrity of the judicial system. Extra-judicial statements in the media strike at the heart of the fair and impartial administration of justice and threaten to undermine the integrity of the criminal justice system, and therefore cannot be allowed to occur. This passage is a complete lie, and it’s and a violation of Professional Rules of Conduct 8.4 (c) to present such a bogus statement as the truth. The rule’s own footnotes betray the fact that only certain extrajudicial statements fall within the limits of this prohibition on pre-trial publicity. Additionally, if this statement were true, Livernois would not be so comfortable commenting so freely for the Laconia Daily Sun article. Further, insisting a party is a slave to rules that do not and could not apply to him does not protect the integrity of the justice system.
  6. 6. Allowing these false statements to appear in such an illegitimate effort to silence my writing compounds the violation, especially because Livernois and Cormier are both public officials. The final footnote of Rule 8.4 on Misconduct (Maintaining the Integrity of the Profession) reads as follows: [5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization. County Attorney’s Office representatives must meet a much higher standard of character. They set the example. Lies and abuses like this should never be tolerated. A Superior Court Judge who does nothing when those lies have been exposed to him, not even warning or admonishing the County Attorney, stands as proof that this kind of misconduct is too commonplace in the local justice system. Consider this passage from the ACLU Brief: “Moreover, the proposed gag order even exceeds the scope of Rule 3.6(c) by ignoring its numerous exceptions. For example, Rule 3.6(c) allows a lawyer in a criminal defense case to state, among other things: “(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; … (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto …. Demonstrating the sheer breadth of the proposed gag order, it would even bar speech that is specifically permitted by a lawyer under Rule 3.6(c), including information contained in public pleadings which is expressly allowed.” This passage is proof that neither Cormier nor Livernois objectively analyzed or even fully read the very rule they cited to ask for relief. So, even if the rule did apply to me, my conduct did not violate the rule in the first place. How can this behavior be sanctioned and allowed to continue? Livernois and Cormier are in high positions of prosecutorial power, and they should
  7. 7. not be allowed to abuse it purposely or by way of just plain neglecting their duty to investigate the facts and the law before submitting a motion for the court. They are playing around with taxpayer funds here to protect their own personal images. Everything about this request and the manner in which it came to pass betrays the fact that Attorney Livernois let his anger and frustration get the best of him. He acted out of a sheer selfish need to maintain a false image of himself in the public eye as a man with a perfect sense of integrity. Throughout my career as a journalist, I’ve discovered that people who want to hide the truth from public knowledge so badly will ruin themselves in the long run. This motion was spit out of the county attorney’s office much too quickly, because such a sweeping request (if granted) would have catastrophic effects on the rights of individuals to protest unfair treatment in the legal realm. This motion, if it was truly so important to file and succeed with, should have been much more carefully crafted, and the gag order request clearly needed to be more narrowly framed. The simple fact that there is media interest in the case is not enough to sustain such a request in the first place according to the ACLU’s brief: (“A reasonable likelihood of prejudice sufficient to justify a gag order cannot simply be inferred from the mere fact that there has been significant media interest in a case. After all, ‘pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial,’ and ‘[i]n the overwhelming majority of criminal trials, pretrial publicity presents few unmanageable threats to [the right to trial by an impartial jury].’”) (quoting ebraska Press Assn., 427 U.S. at 554, 551). Attorney Livernois has been so worried about defending himself that he’s used pleas to the court designed to protect a defendant’s right to a fair trial and abused his position of influence on the courts to ask for an absolutely unconstitutional prior restraint through his deputy. Paul v. Davis is a Supreme Court case from 1976 that ultimately determined that no U.S. citizen has any right to reputation that is defined or guaranteed by the United States Constitution. Certainly public officials like Attorney Livernois by running for public office
  8. 8. volunteer to some extent for the public scrutiny that comes with their very passage into political territory. The power they assume as elected officials carries responsibilities. If there are not enough checks and balances in the system of government to hold them accountable for betraying their responsibilities, a free press is the best remedy. Andrew Livernois wrote his own letter to the editor in the Laconia Daily Sun on September 9, 2010 (https://bit.ly/3fUYyKD). This was part of his initial foray into politics outside the courtroom, as he sought to be elected as Belknap County Commissioner. He later served as a selectman in Sanbornton. The fact is Livernois and Cormier should both know better. The motion for a gag order is just embarrassing. They both graduated from accredited law schools. Livernois was once the ASSISTANT ATTORNEY GENERAL IN THIS STATE and actually went to YALE! You don’t let an incompetent and indefensible motion like this get out the door if you’re a responsible, well-educated leader with any shred of integrity, especially when you are trying to make sure this whole thing stays out of the press. Even if you just plan to “blame it on the new guy,” this is not an ethical approach to the practice of law. This is not a “throw it at the wall and see what sticks” environment. This is serious business. It is not a game or a scenario where you can afford to mess around with a defendant’s future because you’re personally offended. I am facing a maximum of 53 years behind bars. It’s not only irresponsible, it’s just plain stupid that the county attorney would even try a gag order in this scenario when he’s demonstrated he can write a letter to the editor himself and he clearly knows my First Amendment rights would be unduly threatened. Livernois was the town attorney for Alton, New Hampshire when the town settled a First Amendment case brought by Jeffrey Clay: https://bit.ly/2CByJkp. Clay went beyond writing a letter to the editor and became agitated enough at a selectmen’s meeting to get himself arrested for his remarks. The charges were dropped and Clay brought a claim against the town. The town settled for $40,000. Livernois additionally made the following remarks in a Laconia Sun article about starting out in the position of County Attorney *(an article which also highlighted his First and Fourth Amendment expertise): https://bit.ly/2ViRIa5.
  9. 9. “I want to learn what people want and make sure the office is delivering that. The heart of what the county attorney does is to supervise the office and be a prosecutor."(emphasis added) “A prosecutor’s job is to exercise prosecutorial discretion, and you want a pro who has good judgment, who is fair and reasonable, not a pure zealot ... Exercising justice requires the ability to analyze a situation and fully appreciate all the contours to get the right result. My job is to enforce the law.” (emphasis added) “My goal is to instill to the best degree I can an atmosphere of professionalism, and I can bring some of my practice and experience to help us become better at everything we do. I will take a hard look when I get in to see that we are the best lawyers we can be in the courtroom, and make sure, no matter what, we practice with integrity and fairness, and are fair shooters.” (emphasis added) More recently, in response to the Laconia Sun’s request for comment about the gag order request his deputy asked the court for, Livernois made the following quoted statements: a.) “Lawyers are under fairly strict rules that prohibit us from talking in the media about pending litigation,” Livernois said in an interview Wednesday. “The reason for that is to avoid poisoning the jury pool. Cases should be tried in courtrooms, where evidence comes in in certain ways, rather than in the media. b.) “My thinking is that he should have to follow the same rules as lawyers have to follow. c.) “I respect his right to free speech and to air his grievances and to complain about me and my office. That’s acceptable, but I prefer not to have facts of the case in the media, where potential jurors could read about it and shape their view ahead of time.”
  10. 10. Full article: https://www.laconiadailysun.com/news/courts_cops/livernois-seeks-gag-order-in- pot-sales-case/article_16eb537c-ab5a-11ea-b897-8746226e95f3.html (https://bit.ly/382ZBW5) Comment A is a lie. If it’s true, Livernois is breaking those “strict rules” by even talking to the media. Only a certain, narrow area of commentary is forbidden under the Pre-Trial Publicity rule: Rule 3.6 of the Rules of Professional Conduct. If he truly believes what he is saying, he’s going against all those principles by offering any comment on the situation. Comment B betrays the fact that Livernois did not ever do any homework to research the law and the facts behind the gag order motion. He reveals it his personal opinion (“My thinking”) that I should follow the same rules as lawyers despite not being one myself in this comment. What he thinks does not automatically become the law. The law is based on valid precedent cases, current statutes, and State and Federal constitutions. Comment C is actually a confession. The motion for a gag order did not come before the court as a legitimate legal argument based on any true emergency scenario (it came with no order shortening time request) or any real need to keep the facts of the case out of the press. Livernois admits in this comment that it was simply a matter of him preferring not to have these facts floating out there about an ongoing case coming up for trial this fall. Within five minutes of doing a Google search on pro-se parties and gag orders, I realized that most of the cases returned in the results regarded unruly, out of control defendants. Choosing to represent themselves for these individuals was a way to continue to disrupt the system at every turn. They had to be physically gagged and/or restrained. My case is very different. I wrote to the County Attorney willing to cooperate in identifying two serious leaks in law enforcement who were feeding the main target in my case information about ongoing investigations. I offered to do this initially for no consideration on my charges. Livernois refused to meet with me, claiming I would need an attorney to talk with him. I offered to waive my right to a public defender and asserted my right to represent myself. Livernois
  11. 11. continued to discriminate against my financial status (see exhibit 3), knowing I could not afford an attorney. He was concerned I would incriminate myself, or so he said. All of this is in writing: https://bit.ly/3dynuG6 My public criticism of Livernois and this case has never been challenged as inaccurate. I’ve literally been targeted simply because I want to expose the full truth of what happened in this case. I come before the court with a long history as a journalist. I know how the press works and all the laws that protect me. I have been in a variety of legal skirmishes in the civil courts to defend my investigative reporting. My adversaries included billionaire casino owners trying to accomplish bankruptcy fraud and an image-obsessed plastic surgeon who trademarked his own name to avoid patients writing bad reviews about his work. I also helped build an investigation into a con man named Russell Pike that put him in federal prison for 4 years for tax evasion. I additionally uncovered some local scandals during my time as a reporter for the now defunct Laconia Citizen. I take my investigative reporting work very seriously, and becoming familiar with the justice system in the United States only made my work more ironclad and immune to the threat of lawsuits. I know what I can and cannot write to avoid defamation or slander lawsuits. I know I have to back up my claims with evidence inside and outside of court. I have a high level of integrity ingrained in me as a result of my attending 4 years of schooling at three different military academies: the US Air Force Academy (95-96), Norwich University (96-99) and Virginia Military Institute (Spring, 1998 exchange program). These schools also taught me to pay special attention to all the details of any particular situation. My father also happened to be a career law enforcement officer who investigated Irish Mafia Kingpin and FBI Informant James “Whitey” Bulger as a local detective in Quincy, Massachusetts. I know all about the damage that government leaks can do to good cops trying to do the right thing. It weakens the whole system when behavior like this goes on unchecked.
  12. 12. I made a good faith effort to eliminate one leak within the Drug Task Force and another in the Belknap County Sheriff’s Office. Attorney Livernois not only did not lift a finger to investigate the leaks, he actually instructed Belmont Police to ignore my claims, which I put in writing and delivered in person to the dispatch window at Belmont Police headquarters. There was absolutely no follow up. What is the cost of knowing about leaks existing and allowing them to continue to compromise investigations? We can answer that question with what’s going on with the Belknap County Sheriff’s office right now. Sheriff Michael Moyer and his Deputy Dave Perkins have been in a serious public dispute over Perkins reportedly trying to challenge the integrity of the Sheriff’s Department Drug Task Force. An article about Moyer being unhappy about leaks and the assorted newspaper headlines this scandal’s generated recently appeared in the Laconia Daily Sun: https://www.laconiadailysun.com/news/local/sheriff-moyer-objects-to-public-airing-of- lengthy-department-dispute/article_2e63f9b6-a42d-11ea-a856-bf8e7ba8ee90.html (https://bit.ly/2NtI9Az) This article contains the following telling statement: “…Perkins – as acting sheriff – was planning to bring in an outside agency to investigate the Drug Task Force, which is led by Deputy Sgt. William Wright. Perkins’ concerns centered on a drug investigation regarding a person who had a connection to a member of law enforcement.” (emphasis added) This is just documented proof that certain drug suspects are being fed information to avoid prosecution by people who are supposed to be “the good guys.” I tried to stop it and was completely shut down by Livernois, leading me to lose all trust and faith in acquiring his help to eliminate the leaks. There is a so-called “Blue Wall of Silence” in this state and in this county. Law enforcement professionals are betraying their ethical responsibilities in order to avoid accountability for their worst transgressions. Now that an inter-office dispute is being
  13. 13. aired in the public press, the Sheriff and his groomed successor are trying to close the ranks and keep the whole thing quiet. The fact that Sheriff Moyer also spoke out specifically about leaks and wanted to write a letter to Livernois about them speaks volumes. I was not making up stories or trying to play the prosecutors. These leaks that I’m not allowed to talk about at trial are currently festering in the system. It was not just my case that was compromised. I offered Livernois and the Belmont Police Department the chance to shut down leaks in two agencies over a year ago, and they sat on their hands. I had information coming to me directly from one of the main suspect’s relatives, who live directly across the street from me. These law enforcement officials, led by a man calling himself the chief law enforcement officer in the community, refused to go after those leaks despite my willingness to cooperate for no consideration on my case at the outset. This environment only leads to officers being more comfortable with committing abuses, knowing they will never be held accountable. Their brethren will always have their backs. The taxpayers end up paying for this hopelessly broken system and all the mistakes and failed investigations that result from this type of behavior. More responsible and dedicated officers just end up wasting time trying to pursue an “untouchable” suspect even when someone is willing to step up to take away that label by eliminating his sources of inside information. Cormier, though he is a deputy County Attorney, is not absolved of responsibility for misconduct here. Just as any subordinate soldier has a duty to refuse to follow an unethical order from a superior, Cormier had a duty to refuse to participate in the charade of asking for a gag order in this case based on a letter to the editor published in a local newspaper. The deputy has only stepped in to participate in this case one other time at a hearing. This is his first personally drafted pleading thus far. Even if he is not as intimately familiar with the facts of the case as Livernois, Cormier owes the court a duty to research the applicable law. He could not come up with one single
  14. 14. scenario where any other pro-se party had ever been required by any court to follow the rules of professional conduct for bar-admitted attorneys. It is painfully obvious that he did not spend much time at all on this motion, especially considering the mere two days that came between me emailing the letter to the editor to his boss and the subsequent gag order request. The request itself was not detailed or elaborate, as if this was just a formality. Cormier basically treated this motion like he was preparing a run-of-the-mill certificate of service. What he was really doing was threatening an individual’s First Amendment rights because his boss had his feelings hurt and would “prefer” to keep the facts of the case out of the public eye. Cormier willfully carried out orders to write this gag order. He did so with no regard for professional responsibility requirements. He disrespected the law, tolerated his boss abusing his position of trust in the community, and violated the criminal rules of procedure by presenting a pleading to the court that was not filed in good faith. The motion was also not supported by any applicable legal background. Taxpayers in this community deserve better representatives who will not waste their money on wild goose chases like this. Before they continue to try to apply their rules of conduct to outsiders, they should re-read those rules themselves and make a much better effort to follow them. Appropriate sanctions should be applied to both attorneys to sufficiently deter them from engaging in such behavior again. It should also be noted that I gave both Livernois and Cormier a chance to withdraw the offending motion in order to avoid a grievance filing like this one. I can provide proof of that written communication if needed. Respectfully, Richard E. Bergeron III 107 Cotton Hill Rd. Belmont, NH 03220 (603) 630-6235
  15. 15. EXHIBIT 1
  16. 16. EXHIBIT 2
  17. 17. EXHIBIT 3

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